Johnson v. State

• Citation: 4 So. 535,24 Fla. 162
• Court: United States State Supreme Court of Florida
• Decision Date: 30 May 1888
• Parties: JOHNSON v. STATE.

4 So. 535

24 Fla. 162

JOHNSON v. STATE.

Florida Supreme Court

May 30, 1888

Error to circuit court, Polk county; H. L. MITCHELL, Judge.

Syllabus by the Court

SYLLABUS

The minutes of the circuit court should show, by formal entry to that effect, the fact of the presentment of an indictment by the grand jury, in open court. Where, however, the fact of such actual presentment is not controverted, and the motion in arrest of judgment is upon the ground of the absence of such entry, and there is in the transcript of the record evidence from which it may reasonably be presumed, in the absence of a direct issue as to such presentment, that such presentment was made, the motion should be denied.

Where upon such a motion, it is a fact that the indictment was regularly presented, the record should be amended nunc pro tunc so as to speak the truth upon the subject.

Murder in the second degree, as defined by our statute, discussed and the testimony in this case held not to show a case coming within the offense as defined.

The illicit relation between the defendant and the wife of the deceased held admissible as evidencing the former's motive for killing the deceased.

Whether or not a conviction of an offense of a minor grade has the effect to acquit the prisoner of the higher grade charged in the indictment, and bar a conviction of the higher grade, on a new trial, is a question upon which no opinion will be expressed until there shall be a case of such a conviction of the higher grade, on a new trial, presented.

COUNSEL

C. C. Wilson, J. H. Humphreys, and Wall & Turman for plaintiff in error.

The Attorney General, for the State.

OPINION

MAXWELL, C.J.

The plaintiff in error was indicted for murder at a special term of the circuit court for Polk county, in January, 1887, John C. Newcastle being the victim. On arraignment, at the succeeding May term, there was a plea of not guilty; then a trial and conviction of murder in the second degree. A motion for a new trial was made, which the court denied, and then a motion in arrest of judgment, which was also denied.

Before proceeding to other questions, we will dispose of that involved in the motion for arrest of judgment, the denial of which is assigned for error. This motion is based on the ground that there is not sufficient record evidence in the case an indictment was found by the grand jury, and returned by them into court, to authorize the trial, the defect being that the minutes of the court do not show that the grand jury returned any indictment into court against the plaintiff in error. That is true as to the minutes; but what does appear in the case is an indictment in the usual form by grand jurors of the county of Polk charging against plaintiff in error the murder of Newcastle, and signed by 'George B. Sparkman, acting state attorney for the Sixth judicial circuit of the state of Florida, prosecuting for said state.' On the indictment are these indorsements: 'A true bill. JOHN C. BLOUNT, Foreman. Filed January 27, 1887 W. H. JOHNSON, Clerk.' While the proceedings of the court show no other entry than this of the return of the indictment into open court, the record before us (the clerk speaking) recites that 'on the 27th day of January, 1887, came * * * the grand jurors, and filed [said] circuit court a bill of indictment against the defendant,' etc.; and then gives a copy of the same. But the record proper does show that Sparkman was duly appointed acting state attorney for the special term at which the indictment was found; that Blount was the foreman of the grand jury for that term; that Johnson was the clerk of the court; and that the court was in session January 27, 1887; and shows further that on that day the case was docketed and set for trial. The question presented is whether the facts as they thus appear constitute sufficient record evidence of the return of the indictment into court, or whether a formal entry in the minutes is necessary to show such return. There is nothing in our statutes that requires this formal entry. Section 3, McClel. Dig. p. 442, only directs that 'all indictments shall be signed by the prosecuting attorney, and indorsed on the back, by the foreman of the grand jury, when so found, 'A true bill." That is done in this case. How the indictment gets into court, and gets on the files, is not provided for by any specific direction, but is left to the established practice of the courts for ages, which is by the appearance of the grand jurors before the court, their tender of the indictment to the court, and its reception by the clerk, the official of the court for that purpose, (all of which is presumed to have been observed in this case,) in the absence of any allegation or pretense to the contrary. The better practice would be that which is usually followed--to make a formal entry entry of the return of the indictment in the minutes; but all the authorities do not sustain the contention that this is absolutely necessary. In Collins v. State, 13 Fla. 651, Judge WESTCOTT reviewed the question at considerable length, citing authorities of great respectability to sustain the view that such record evidence is not essential; and though the precise question now before us, as raised in the lower court, has not been decided, the evident inclination manifested by our decisions is against the essentiality of such record evidence. Bass v. State, 17 Fla. 685, and citations. The motion here does not controvert the actual presentment of the indictment in open court by the grand jury, but merely avers the omission of the proper entry of such presentment. If the issue of such presentment was squarely raised by the motion, we do not know but that we should arrest the judgment; but as it is not, our conclusion, in view of the evident tendency of our former decisions and the authorities cited in them, is to affirm the action of the circuit judge in denying the motion as made. Assuming, as we do, that the motion in arrest of judgment was denied for the reason that the indictment was formally presented in open court by the grand jury, our opinion is that the record should have been amended nunc pro tunc so as to show such fact. State v. Pearce, 14 Ind. 426; State v. Clark, 18 Mo. 432; Green v. State, 19 Ark. 189; Freem. Judgm. §§ 71, 72.

We come now to the errors assigned as having been committed during the progress of the trial, the principal one of which is the action of the court in denying the motion for a new trial. The motion was based on the usual general grounds, with this addition: that 'the evidence in the case did not warrant the jury in convicting the defendant of murder in the second degree.' We find nothing in the record to lead us to pronounce the court in error on the other grounds. As to this, the evidence, so far as material, is that the plaintiff in error lived with Newcastle and his wife, and that on the night of the 9th of January, 1887, Newcastle was found dead in his bed. His death was caused by a...